Action on Authors’ Rights is a network of authors and agents campaigning from the grass-roots in support of authors’ rights

Summary

We believe that

·arrangements for licensing orphan works must respect the rights of authors and do as little as possible to disrupt the market in copyright licenses

·the same applies to any extended collective licensing scheme

We welcome

·the Government’s statement that any orphan works scheme would incorporate safeguards to protect the rights of the owners and the interests of other rights holders

We advocate

·the strengthening of authors’ moral rights

We do not support the use of extended collective licensing schemes

·to evade the diligent search requirement for licensing orphan works

·in relation to licensing primary rights, such as the right to issue an edition of a book

·to facilitate clearing rights for mass digitisation programmes

We caution

·that a parodic work, though imitative, should always be original

We advocate

·implementation of the recommendation for a small claims procedure for intellectual property cases

·a programme of public education about copyright

·a ban on placing advertisements on pirate websites

We observe

·that the planned IPO copyright opinions service must be set up so that it operates in complete independence from the IPO’s policy-forming functions, in such a way that it cannot become, or be seen as, an instrument for effecting change in copyright law

1. Without the original creative work of authors, publishers and booksellers would have nothing to sell. It is authors who produce the value on which the entire publishing industry depends. Most freelance authors license their works directly to publishers on an exclusive basis. This system allows the author to make the best agreement he or she can for the exploitation of the work, based on the known or likely demand. It also gives the author control over where the work will appear, and in what form and context, which are matters in which every author has a legitimate interest. It is an efficient, market-driven system.

2. Schemes for identifying and licensing works with unlocated copyright holders (often known as ‘orphan’ works) intrude on the market in licences and interfere with the rights guaranteed to authors under international and European Union intellectual property laws and human rights laws.1 So, to an even greater extent, do schemes for extended collective licensing (ECL), under which authors’ works are automatically opted in and made available for use unless they arrange to opt out.

3. Any such scheme should be limited, and respectful of the rights of authors and their heirs. Care should be taken to do as little as possible that may distort the market. Questions of proportionality should be carefully considered:2 will the benefits that may reasonably be expected to flow from an orphan works scheme truly outweigh the benefits to the economy of the good functioning of the markets that sustain our creative industries? Is the objective of such a scheme important enough to justify encroaching on the fundamental rights of creators? How can that encroachment be minimized so as to do no more damage than is absolutely unavoidable?

4. With this in view, we note the announcement in the Government’s response to the Hargreaves Review of their forthcoming proposals for an orphan works scheme. We welcome their statement that any such scheme would incorporate adequate safeguards to protect the rights of the unlocated owners and the interests of other rights holders, who, as the Government state, ‘could suffer from unfair competition’. They promise that these safeguards would include ‘diligent search for rights owners, licensing at market rates for commercial use and respect for the rights of "revenant" owners that come forward’. These assurances are, as far as they go, encouraging. Plainly many important details remain to be explored.

5. In the consultation paper ‘Orphan Works - Potential Solutions’, circulated early in 2009, the Intellectual Property Office (IPO) stated: ‘A licence (whether issued by the Crown, or other third party) for a specific activity of relatively short duration or limited scope (e.g. a licence for a limited period or for a limited number of uses (e.g. a licence to make 100 copies) would seem to be appropriate. This is in view of the fact that the owner of the orphan work may be discovered.’3 This may be felt to be a proportionate approach. Likewise, in the same paper the IPO state: ‘A scheme could provide for the termination of any licence where the granting authority is satisfied that the licensed work is no longer to be regarded as being an orphan work … subject to the exception that the licence could continue in effect with the consent of the rights holder.’4 Granted that this could be done, it follows that it must. Any other approach would be inequitable, as it would bind the rights holder without his or her consent to a contract that might be injurious. We briefly discussed this point in our submission to the Hargreaves Review.5

6. In our submission to the Review we joined many other creators’ organisations and individual creators in calling for a strengthening of authors’ moral rights.6 Under the 1988 Copyright Act moral rights do not exist in the case of works produced for publication in a newspaper or similar work. They may also be waived by the author, and publishing companies frequently use their economic leverage to compel this, to suit their own convenience. In France and Germany the moral rights legislation is considerably more robust. If UK law gave authors a stronger right of paternity (the right to be identified as the author of the work) there would certainly be fewer ‘orphan’ works. The right of integrity is also important: that is the right to object to distortion or mutilation of the work, or any treatment of it that prejudices the author’s honour or reputation. Professor Hargreaves has described authors’ moral rights as a ‘non-economic [factor]’, though he does, at least, note the importance of the right of integrity.7 In truth, moral rights have strong economic importance to authors; they promote visibility and protect against damage to reputation.8 In the digital age it is more than ever important to authors and copyright users alike that works should not be allowed to circulate without being properly attributed. We are disappointed that the call for strengthened moral rights has not been reflected in the Review.

7. We note the announcement in the Government’s response to the Review that they plan to introduce proposals for extended collective licensing ‘to benefit sectors that choose to adopt it’. This raises important questions: first, as to how a ‘sector’ will be defined, and secondly, how creators working in that sector will be consulted. We are also concerned that ECL may be viewed as a means to evading the diligent search procedure required before orphan works are permitted to be licensed. We consider the diligent search requirement to be very important. Any attempt to evade it would smack of bad faith.

8. Of very particular concern would be any proposals to impose ECL in relation to primary rights. The right to publish a book in printed form is a primary right, and so is the right to publish a book as an e-book. We believe that any such move would destabilise the important emerging market in digital editions. Our further views on ECL have been set out in detail in our submission to the Review.9

9. It should be apparent from this that we do not support the imposition of ECL schemes to facilitate clearing rights for mass digitisation programmes. We note that in his Review Professor Hargreaves claims that ‘There are successful precedents elsewhere in Europe’ for using ECL in this way.10 He supports this statement with a footnote referencing an agreement negotiated in Norway between an umbrella organisation representing collecting societies, KOPINOR, and the Norwegian National Library, for making works by Norwegian authors available on the web. Investigations have established that this project was launched in May 2009 and is due to be completed this year. The KOPINOR website describes it as a ‘pilot project’.11 So far no detailed assessment has been published in English online, though the Wall Street Journal published an informative article about it last year.12 It might be said from the evidence that the Norwegian National Library and KOPINOR have set a ‘successful precedent’ for concluding an ECL agreement for digitising in-copyright books. It is far too soon, and there is too little information available, to claim success for the project, which is, in any case, quite limited. It may be noted that Norway, though ‘in Europe’, is not a member of the EU. Though he speaks of ‘precedents’ in the plural, Hargreaves omits to give any other examples. He may be thinking of the framework agreement recently signed in France for digitizing in-copyright, out-of-print books.13 The law, however, is yet to be changed to permit the scheme to go ahead; it is, again, a ‘successful precedent’ for concluding an agreement, no more.

10. In response to the Hargreaves Review the Government has said that they will ‘bring forward proposals … for a substantial opening up of the UK’s copyright exceptions regime’. Among the specific proposals is one that would put parody on a secure legal footing. Parody has an ancient and distinguished history in this country. We are, however, concerned by the one example that Professor Hargreaves, and more recently the IPO press release announcing the Government response to his Review, have cited as demonstrating the need for this piece of legislation. This is the episode relating to the ‘Newport State of Mind’ parody song that was removed from YouTube.14 Curiously enough, a good account of the issues involved in that case may be found elsewhere on the IPO website, in an article by IP lawyer Steve Kuncewicz.15 He points out that though the lyrics to this song are different to the parodied original, the melody is very similar, and suggests that this would have made it hard to defend against a charge of infringement. A parody, though an imitation, should be an original work throughout. It is important that that line should not be blurred. It should also be understood that the copyright in the words to a song is distinct to the copyright in the music. Writing a parody of the lyrics does not and must not legitimate infringing the composer’s rights in the melody.

11. We welcome Professor Hargreaves’ recommendation that the Government should implement the proposal, originally made by Lord Justice Jackson, to introduce a small claims track in the Patents County Court.16 The Government has said that it will do this ‘subject to establishing the value for money case’. We trust that the Government, in weighing this matter up, will bear in mind that what may appear to be modest sums are often very important to the profitability of small creative businesses.

12. Professor Hargreaves recommends that education should be part of the Government’s strategy for tackling piracy.17 The Government has said, apparently in response, that ‘Rights holders must continue to take responsibility for the exercise and protection of their rights and to educate and guide consumers.’ We are dissatisfied by this. We believe it is right that the Government should take a role in this area. We consider it to be very much in the interest of the public that there should be better education and advice available on copyright and related matters.

13. The World Wide Web has put the means of publication into the hands of nearly every member of the population. This has facilitated copyright infringement, but it also means that very large numbers of people are regularly publishing their own writings and other creative material. Education has not kept up with this. Many people are confused about copyright. They do not understand what they can and cannot do with a copyright work without obtaining a licence from the rights holder, nor do they appreciate the benefits of copyright in protecting their own creative work and stimulating cultural production. We believe that the public should be provided with clear information about copyright and authors’ moral rights, and that instruction on these topics should form part of the curriculum at school and university level. We think that among other benefits this would strengthen public regard for copyright and improve compliance with copyright law.

14. We welcome the emphasis in the IPO’s paper on ‘IP Crime Strategy’ on tackling websites that make a business out of illicitly distributing copyright works. We applaud the recent moves by City of London police to try and prevent pirate websites from obtaining credit card facilities, and wonder whether there are ways in which such initiatives might be extended and given more teeth.18 In our submission we drew attention to the Marine, &c, Broadcasting (Offences) Act 1967, which made it a criminal offence to buy broadcast advertising on the pirate radio stations.19 We suggest that this is an approach that might be tried again.

15. The Government has announced that the IPO is to publish plans for a copyright opinions service. Such a service might be useful. It must, however, be completely independent and impartial, and, in particular, it must function in complete separation from the IPO’s role in formulating policy. It must be protected against any form of political influence and any risk that it may become or be seen as, an instrument for advancing policy objectives in relation to the development of copyright law. This is especially important if the opinions of this service are to be taken account of by the courts, as has been suggested.